CF v R

1. [1]

   GLEESON JA: The applicant was charged with four sexual assault offences. The first count alleged an offence of sexual intercourse with a child over 10 years and under 14 years. The other three counts alleged offences of aggravated indecent assault of a child under the age of 16 years. All of the charges related to the same complainant who was aged 12 years at the time of the two incidents giving rise to the charges. The applicant entered pleas of not guilty to each of the four counts. He was tried by jury before Garling DCJ in March 2015; however the jury were discharged after they were unable to return a verdict (the first trial). The applicant was subsequently tried by jury before Berman SC DCJ at Newcastle. On 6 May 2016, the jury returned a verdict of guilty on each count.

2. [2]

   In respect of count 1, the maximum penalty of 16 years imprisonment is prescribed by s 66C(1) of the Crimes Act 1900 (NSW) (the Crimes Act). There is no standard non-parole period. In respect of counts 2, 3 and 4, the maximum penalty of ten years imprisonment is prescribed by s 66M(2) of the Crimes Act. The standard non-parole period is 8 years.

3. [3]

   On 1 July 2016, Berman SC DCJ imposed an aggregate sentence of imprisonment of 8 years with a non-parole period of 5 years dating from 6 May 2016. Before doing so, his Honour indicated the following sentences that would have been imposed for each offence, had separate sentences been imposed instead of an aggregate sentence (see Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)):

4. [4]

   The applicant has appealed against his conviction. His appeal requires an extension of time. A notice of intention to appeal was lodged on 1 July 2016 and was later extended until 15 July 2017. The notice of appeal was lodged on 16 August 2017. The Crown does not object to an extension of time.

5. [5]

   The sole ground of appeal against conviction, as confined on the hearing of the appeal, is that providing the jury access in the jury room to the complainant’s recorded evidence was an irregularity in the trial which caused a miscarriage of justice. That evidence comprised audio-visual recordings of (a) the complainant’s interview with the Joint Investigation Response Team (JIRT) in March 2013, and (b) the complainant’s evidence-in-chief and cross-examination in the first trial in 2015 (a small part of which was an audio recording only). (JIRT is a unit within the NSW Police Force comprising police officers and social workers from the Department of Youth and Community Services specialising in child sexual abuse investigation.)

6. [6]

   Senior Counsel for the applicant withdrew ground 1 insofar as it relied upon the provision to the jury of transcripts of the complainant’s recorded evidence.

7. [7]

   The applicant accepted that r 4 of the Criminal Appeal Rules applies given that the complainant’s recorded evidence was admitted without objection, was available to the jury in the jury room, again without objection, and no complaint was made at trial concerning the trial judge’s direction to the jury with respect to the use of that evidence. The applicant must satisfy the Court that it is appropriate to grant leave under r 4 to rely on this ground of appeal. For the reasons that follow, I would grant leave to rely upon ground 1 pursuant to Criminal Appeal Rules, r 4, but dismiss the appeal against conviction.

8. [8]

   The applicant also seeks leave to appeal against sentence. The sole ground relied upon is that the sentence is manifestly excessive. I would grant leave to appeal against sentence, but dismiss the sentence appeal.

The Crown case

1. [9]

   The applicant is the complainant’s great uncle by marriage; the applicant’s wife and the complainant’s mother are sisters. The applicant was aged 58 years at the time of the offences. As indicated, the complainant was then aged 12 years.

2. [10]

   On or about 23 December 2011, the applicant and his wife travelled from Newcastle to the complainant’s family home for a Christmas get-together with the complainant’s family. The complainant and the applicant were sitting together alone in a back room at a table with bench seats with their backs to the kitchen area where the complainant’s mother and the applicant’s wife were situated. The applicant was showing the complainant something on his mobile phone, when he put his hand into the complainant’s underpants and penetrated the complainant’s vagina with his finger, wriggling it around for some three or four minutes (count 1). The complainant froze and did not call out. When the complainant’s mother and the applicant’s wife came back towards them, the applicant stopped what he was doing. He pulled away from the complainant and then got up and cleared the table.

3. [11]

   On a night in August 2012, the applicant and his wife were again visiting the complainant’s family, who on this occasion were temporarily residing at their next-door neighbour’s house, as the family home was undergoing renovations. A number of witnesses remembered the night because a glass of red wine was spilt on the carpet. The complainant and the applicant’s wife were seated on a lounge, watching television. The applicant was massaging the complainant’s leg when he touched the complainant’s genitals on the outside of her clothes (count 2). Later while the applicant’s wife was distracted using the Google Earth application on her new mobile phone, the applicant put his hand up the complainant’s jumper, inside her sports bra and touched her breasts (count 3). He then put his hand inside the complainant’s underpants and touched her external genitals (count 4). The complainant jumped off the lounge and went to bed.

4. [12]

   The complainant first complained about the applicant’s conduct some months later in February 2013, in a social media conversation with her cousin. The complainant’s cousin then told her parents. Police were contacted and the complainant was interviewed on 7 March 2013 by officers from JIRT. The complainant’s cousin was also interviewed by JIRT.

5. [13]

   The police covertly recorded a conversation between the applicant and the complainant’s father, during which the applicant admitted that he had “obviously done the wrong thing” and that he did touch the complainant “on her private part”. The applicant explained that he was just “massaging” the complainant at that time. He denied that he was “fingering” the complainant.

6. [14]

   The applicant was later interviewed and charged. In his electronically recorded interview (ERISP), the applicant denied the allegation in relation to the incident in late December 2011, the subject of count 1. He said that he recalled the night when he and his wife had been at the complainant’s home and red wine had been spilt. He said that he had been massaging the complainant and that while he was doing that, his hand “accidentally went onto [the complainant’s] private part”. The applicant otherwise denied the allegations in relation to the second incident, the subject of counts 2, 3 and 4.

7. [15]

   The police also covertly recorded a conversation between the applicant and his wife, after he was charged, in which the applicant’s wife reminded the applicant that she had repeatedly warned the applicant about massaging “too high” up the complainant’s leg because it was “inappropriate”. The applicant said that he had not meant it in a sexual way. He said that he had told the applicant’s father that he might have “accidentally touched” the complainant’s “private part”.

The defence case

1. [16]

   The applicant gave evidence at the trial in which he denied each of the charges. The applicant recalled the occasion in August 2012, when the red wine had been spilt. He said that he had massaged the complainant’s foot and leg over her clothing whilst they were on the couch watching a tennis match. He said that when he moved his hand towards the complainant’s knee, he accidentally bumped the complainant’s groin area. He said that he apologised and continued to massage the complainant’s leg for some time. In cross-examination, the applicant admitted that his wife had spoken to him about touching the complainant on the thigh. He said that his wife had told him that it was inappropriate to massage the complainant on the thigh.

2. [17]

   The applicant’s wife gave evidence about both incidents. As to the events of 23 December 2011, she said that nothing unusual stuck out in her mind about that night. As to the night in early August 2012, she said that she recalled the night that the red wine was spilt on the carpet, that she saw the applicant massaging the complainant’s feet and legs while they were watching the tennis, and that she did not see the applicant put his hand up the complainant’s top or down the complainant’s pants. In cross-examination, the applicant’s wife agreed that she had told the applicant that he was massaging the complainant inappropriately.

3. [18]

   A number of witnesses gave evidence of the applicant’s good character, including his son, daughter and son-in-law, relatives of the applicant’s wife and a friend.

Issue in the conviction appeal

1. [19]

   The second trial commenced before the jury on 26 April 2016. The evidence adduced by the Crown from the complainant was given by playing the video recording of the complainant’s JIRT interview (approximately 1 hour 15 minutes); and the video recording of the complainant’s further evidence-in-chief, cross-examination and re-examination at the first trial (in part, an audio recording only) (approximately 3 hours 20 minutes), during which the complainant was not present in the courtroom at the first trial, but gave the balance of her evidence by video-link between the courtroom and a remote location. (The procedure for the giving of the complainant’s evidence at the first trial was governed by the Criminal Procedure Act (NSW) 1986, as the complainant was a “vulnerable person” as defined in s 306M(1), being a child being under the age of 16 years: see s 306P(1)).

2. [20]

   A transcript of each of the recordings was provided to the jury when the recording was played in court. No objection was taken to that course.

3. [21]

   The procedure for the giving of the complainant’s evidence at the second trial was conducted pursuant to provisions of the Criminal Procedure Act relating to subsequent trials of sexual assault proceedings, as the applicant had been charged with having committed a prescribed sexual assault offence: s 306H and s 306A; and see the definition of “prescribed sexual offence” in s 3(1), which includes an offence against ss 66C and 66M of the Crimes Act.

4. [22]

   No objection was raised as to the manner in which the complainant gave evidence at the second trial. Senior counsel for the applicant did not suggest in this Court that the complainant’s evidence at the second trial was given otherwise than in accordance with the procedure provided by the Criminal Procedure Act in respect of subsequent trials of sexual assault proceedings.

5. [23]

   The recordings of the complainant’s JIRT interview and the complainant’s evidence at the first trial were not tendered as exhibits at the second trial. Nor were the transcripts of such recordings tendered as exhibits. No objection was taken to this course. The transcript of the second trial did not include a transcript of the recordings played in court at the second trial.

6. [24]

   The jury retired to consider its verdicts at 12.20pm on 5 May 2016.

7. [25]

   It is common ground that the jury were provided with and allowed to take to the jury room all of the relevant trial transcript, all of the exhibits, and all of the complainant’s recorded evidence which included:

   1. (1)

      the transcript of all of the Crown and the defence witnesses’ evidence, including the complainant’s evidence from the first trial, and the evidence of the applicant;

   2. (2)

      the audio-visual recordings of the complainant’s evidence from the first trial (except for one portion that was audio only);

   3. (3)

      the audio-visual recording of the complainant’s interview with JIRT, and its transcript;

   4. (4)

      the audio-recording of the conversation between the complainant’s father and the applicant captured by listening device, and its transcript;

   5. (5)

      the audio-recording of the intercepted telephone call between the applicant and his wife, and its transcript; and

   6. (6)

      the audio-visual recording of the applicant’s ERISP interview, and its transcript.

8. [26]

   The circumstances in which the jury were provided with the recordings and transcript of the complainant’s evidence (as referred to in (2) and (3) above) were as follows.

9. [27]

   Shortly after retiring, the jury sent in a note making the following two requests:

10. [28]

    The following exchange then took place between the trial judge and counsel in respect of the jury’s first request:

11. [29]

    Two observations should be immediately made. First, the reference by the Crown Prosecutor to “the decision in NZ” was a reference to the decision of this Court in R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278 (NZ). Second, the applicant accepted in this Court that the statement by counsel for the applicant at trial that the jury had a copy of the transcript of the complainant’s recorded evidence was incorrect. It is common ground that in accordance with the procedure generally recommended in NZ at [210(b)] (see [59] below), the transcript of the complainant’s recorded evidence was recovered from the jury after the recorded evidence of the complainant had been played in court.

12. [30]

    The jury returned to court at 2.25pm on 5 May 2016 and were given the exhibit list with an explanation by the trial judge and also the witness list. In relation to the recordings of the complainant’s evidence, the jury were told by the trial judge that they were to be provided as soon as they were ready, and were also given a warning as to the way in which they were to approach the complainant’s recorded evidence in following terms:

13. [31]

    No redirection was sought by counsel appearing for the applicant at trial. Senior Counsel for the applicant on the appeal, who did not appear at trial, acknowledged that no complaint is made about that direction.

14. [32]

    The jury returned to court at 2.49pm on 5 May 2016 and were advised by the trial judge about how to play the various clips on the discs they had been given. The jury returned its unanimous verdicts of guilty on all counts at 1:43 pm on 6 May 2016, having spent about 6 hours in deliberations.

The legislative provisions and their application in the second trial

1. [33]

   Part 5 of Chapter 6 of the Criminal Procedure Act is headed “Evidence in Sexual Offence Proceedings”. Division 4 of Pt 5 is headed “Special Provisions Relating to Subsequent Trials of Sexual Offence Proceedings”. Division 4 of Pt 5 was inserted by the Criminal Procedure Amendment (Sexual and Other Offences) Act 2006 (NSW) and commenced operation on 1 January 2007. Division 4 applies when a trial for a prescribed sexual offence has been discontinued and a new trial is listed. It permits previously recorded evidence given by a complainant in sexual assault trials involving a prescribed sexual offence to be admitted in a new trial, including evidence-in-chief, cross-examination and any re-examination.

2. [34]

   Part 6 of Ch 6 of the Criminal Procedure Act is headed “Giving of Evidence by Vulnerable Persons”. Pt 6 was introduced by the Criminal Procedure Amendment (Vulnerable Persons) Act 2007 (NSW) and commenced operation on 12 October 2007 replacing the repealed Evidence (Children) Act 1997 (NSW), being the provisions considered in NZ. Pt 6 governed the manner by which the complainant gave her evidence in the first trial. As indicated, a “vulnerable person” includes a child under the age of 16 years: s 306P(1).

3. [35]

   Division 3 of Pt 6 deals with the means by which evidence of out of court statements may be given by vulnerable persons, including giving evidence-in-chief in the form of a recording (s 306U), the admissibility of recorded evidence (s 306V), the warning to be given to the jury (s 306X) and the supply of a transcript of the recordings to the jury to aid the jury’s comprehension of the evidence (s 306Z). Division 4 of Ch 6 deals with the giving of evidence by vulnerable persons by closed-circuit television facilities or similar technology, and the warning to be given to the jury (s 306ZI).

4. [36]

   Section 306H contains definitions and provides that certain expressions used in Div 4 of Pt 5 have the same meaning as in Div 3 of Pt 5 (which applies in relation to a retrial of proceedings that follows an appeal against a conviction for a prescribed sexual offence). Relevantly, the definitions of an “accused person” and “complainant” have the same meaning as in s 306A as follows:

5. [37]

   The expression “original evidence” of the complainant has the meaning given by s 306I.

6. [38]

   Section 306I provides (emphasis in italics added):

7. [39]

   Section 306J provides for the circumstances in which a complainant is compellable to give further evidence in a subsequent trial. It is unnecessary to set out that provision.

8. [40]

   Section 306K provides that a complainant may elect to give further evidence in a subsequent trial. Again, it is unnecessary to set out that provision.

9. [41]

   Section 306L provides that ss 306E to 306G (including any regulations made for the purposes of those sections) apply for the purposes of Div 4 of Pt 5 with such modifications as are necessary. Sections 306E to 306G are found in Div 3, Pt 5. Section 306E provides (emphasis in italics added):

10. [42]

    Section 306F deals with access to audio visual or audio recordings “tendered” by the prosecutor, to the accused person, or his or her legal practitioners.

11. [43]

    Section 306G provides (emphasis in italics added):

12. [44]

    It may be observed that the provisions of Div 4 of Pt 5 dealing with the admissibility of the complainant’s recorded evidence in a subsequent trial for a prescribed sexual offence, speak in terms of the “tender” as evidence in the subsequent trial of the “original evidence” of the complainant, given by the complainant in the (earlier) discontinued trial.

Submissions

1. [45]

   The applicant’s complaint is directed to allowing the jury access in the jury room to the recordings of the complainant’s evidence. In writing, the applicant accepted that the trial judge retains ultimate discretion as to whether the jury is permitted unsupervised access to recorded evidence of the kind at issue in this case, and then referred to the observations of Howie and Johnson JJ in NZ at [210] as “general rules”, before submitting that a failure to adhere to those general rules at trial is capable of constituting a substantial miscarriage of justice.

2. [46]

   The applicant submitted that the trial judge’s failure to comply with the “general rule” in NZ at [210(a)] (set out at [59] below), by allowing the recordings of the complainant’s evidence to be sent to the jury room, constitutes an irregularity. Reference was made to statements by the High Court in Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55 (Gately) cautioning against allowing the jury “unsupervised” access to a complainant’s recorded evidence, and the comments of Campbell J in Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140 (Jarrett) at [93], that the approach adopted by the High Court in Gately is somewhat more proscriptive than the approach adopted by this Court in NZ v R.

3. [47]

   The applicant argued that allowing the jury unsupervised access to the complainant’s recorded evidence presented an occasion of imbalance. The applicant submitted that rather than putting the complainant’s evidence on the same footing as the applicant’s evidence, what occurred in this case created a danger that the jury would give disproportionate weight to the complainant’s evidence.

4. [48]

   The applicant submitted that this danger was enhanced in the present case where the applicant had adduced a positive case for the defence, unlike the accused in NZ and Gately. The applicant further submitted that the trial judge’s departure from the general rule in NZ was not nullified or counterbalanced by his Honour’s warning to the jury and the irregularity occasioned a miscarriage of justice.

5. [49]

   The Crown submitted that it is arguable that the conclusions in NZ, Gately and Jarrett, that a recording of the complainant’s evidence should not be “admitted as an exhibit” do not apply to the recorded evidence of the complainant from a previous trial that is admitted under s 306I of the Criminal Procedure Act, having regard to differences in the text of s 306I (set out at [37] above), which governed the admission of the recording of the complainant’s evidence in a subsequent trial and the provisions considered in NZ, Gately and Jarrett.

6. [50]

   In any event and irrespective of whether or not a recording should properly be admitted as an exhibit where it is “tendered” under s 306I of the Criminal Procedure Act, the Crown submitted that it remains necessary to consider whether in all of the circumstances allowing the jury access to the recordings has so undermined the fairness and balance of the trial as to cause a miscarriage of justice.

7. [51]

   The Crown pointed to four matters as tending against that conclusion. First, the consent of the applicant’s counsel to the course followed at trial.

8. [52]

   Second, the warning given by the trial judge to the jury not to give “disproportionate weight” to the evidence in the recordings, that no redirection was sought by counsel for the accused at the trial, and that no complaint is made about the warning on appeal.

9. [53]

   Third, in contrast to the position in NZ and Jarrett, the recordings that were provided to the jury in the present case encompassed the complainant’s JIRT interview and further evidence-in-chief and cross-examination, as well as copies of the transcripts of all of the evidence of all of the witnesses – both for the prosecution and for the defence - and that included the transcript of the applicant’s evidence.

10. [54]

    Fourth, the jury had a copy of the audio recordings of the conversations that the applicant had with his wife and the complainant’s father, and a copy of the audio visual recording of the applicant’s ERISP, in which he gave an account of the two incidents which was consistent with the evidence that he gave at trial.

11. [55]

    The Crown submitted that this meant that the jury had the benefit of the audio visual evidence of the complainant’s account (including her examination-in-chief and cross-examination) and also the account of the applicant.

Allowing the jury access to the complainant’s recorded evidence

1. [56]

   It is convenient first to consider the applicant’s submission that there was an irregularity in allowing the jury “unsupervised” access in the jury room to the complainant’s recorded evidence. That directs attention to the authorities mentioned in the parties’ submissions.

2. [57]

   In NZ this Court considered whether allowing the jury access to video-taped evidence of interviews of the complainant (and other witnesses under the age of 16 years) during their deliberations in the jury room caused a miscarriage of justice. The videotapes were admitted as exhibits without objection by the accused’s trial counsel. The tapes were sent to the jury room with the rest of the exhibits. The jury also had transcripts of the videotapes. No request was made by counsel for any direction from the trial judge about the use of the videotapes during the jury’s deliberations. There was no defence case in that the accused did not give, or call evidence. The majority concluded that there was no miscarriage of justice: at [218].

3. [58]

   The principal judgment was given by Howie J and Johnson J, Wood CJ at CL and Hunt AJA agreeing. (Spigelman CJ dissented on the basis that allowing the video tape evidence to go to the jury in the jury room gave rise to a relevant imbalance and led to a miscarriage of justice.)

4. [59]

   After a detailed review of decisions in Victoria, Queensland, New Zealand and England, Howie and Johnson JJ stated that "to preserve the balance and the fairness of the trial, the videotape should not as a matter of course be sent to the jury room after the jury retires to consider its verdict": at [196]. Their Honours explained that "the judge should give a warning to the jury as to the caution with which they are to approach the replaying of the videotape of the evidence in chief of a witness ... [B]ecause they are hearing the evidence ... repeated for a second time and well after all the evidence, they should guard against giving it disproportionate weight simply for that reason and should bear well in mind the other evidence in the case": at [208].

5. [60]

   In summarising their views as to the preferred procedure to be followed “generally”, their Honours said (at [210]):

6. [61]

   Importantly, as Basten JA observed in Jarrett at [73], the joint reasons of Howie and Johnson JJ made it clear that the Court "should not lay down any rule of practice or procedure to be followed in every case where the evidence in chief of a witness has been given by the playing of a videotape".

7. [62]

   Howie and Johnson JJ also declined to adopt any inflexible position in NZ with respect to circumstances where a judge might allow the jury to have the tape replayed without any warning or reminder of cross-examination: at [211]-[212].

8. [63]

   One further matter should be mentioned concerning the preferred procedure outlined in NZ. In that case, the question of whether the videotape once played in court should, or should not become an exhibit, arose in the context of the Evidence (Children) Act. That Act, which has since been repealed, was not in exactly the same terms as, relevantly, ss 306B and 306I of the Criminal Procedure Act. Nevertheless, the remarks of Howie and Johnson JJ concerning s 306B(1) of the Criminal Procedure Act are instructive, as s 306B(1) is in similar terms to s 306I(1). Their Honours said (at [191] – [192]):

9. [64]

   There is no reason to depart from the views expressed in the joint reasons in NZ when considering the effect of the similar language used in s 306I of the Criminal Procedure Act, in connection with a subsequent trial. It seems to me that s 306I, like s 306B, is simply dealing with admissibility of recorded evidence of the complainant in a subsequent trial, notwithstanding the provisions of the Evidence Act 1995 (NSW) or any other Act or law that might exclude the hearsay nature of such evidence.

10. [65]

    The context in which the words “tender as evidence” are used in s 306I(1), like s 306B(1), is the “admission” or receipt of such evidence in a subsequent trial or a retrial (as the case may be), not to prescribe the course to be adopted upon admission of such evidence. The approach suggested in the joint reasons in NZ is consistent with the later remarks of Hayne J in Gately at [86] – [89], distinguishing between real evidence, which is properly received as an exhibit, and oral evidence given at trial, albeit in the form of pre-recorded evidence of the complainant.

11. [66]

    Gately involved an appeal from Queensland. The statutory provisions concerning the giving of a complainant’s evidence were not entirely the same as in this State. Under the relevant legislative scheme in Queensland, a preliminary hearing was conducted in the presence of the judge and counsel but in the absence of the jury or other parties, for the purpose of the complainant giving evidence. That pre-recorded evidence was then played in court before the jury.

12. [67]

    The trial judge, with the acquiescence of counsel for the accused, permitted the video tapes to be replayed in the presence of the court bailiff, but in the absence of the judge and counsel. No warning was sought or given to the jury about the need to avoid giving undue weight to the recorded evidence or the written statement. The accused was convicted. An appeal to the Court of Criminal Appeal of the Supreme Court of Queensland was dismissed. An appeal to the High Court was dismissed (by majority, Gleeson CJ, Hayne, Heydon and Crennan JJ; Kirby J dissenting).

13. [68]

    Their Honours held that allowing the jury unsupervised access to the complainant’s pre-recorded evidence was an irregularity, but concluded that there was no miscarriage of justice: Gleeson CJ at [3]; Hayne J at [93]-[96]; Heydon J at [111]; and Crennan J at [126]. Kirby J agreed that there was an irregularity, but concluded that there was a miscarriage of justice: at [53].

14. [69]

    Hayne J gave the principal judgment; Heydon and Crennan JJ agreeing. Gleeson CJ also agreed, giving additional reasons. After referring to the context in which the complainant’s evidence was to be assessed in that case (namely the absence of any evidence or positive case from the accused), Hayne J said at [80]-[81]:

15. [70]

    Hayne J also remarked (at [88]) that since a criminal trial “is essentially an oral process”, for reasons of the preservation of fairness and balance it would "[s]eldom ... be appropriate to meet a request [that the jury be reminded of the evidence] by giving the jury unrestrained access to the recording to play and replay": at [94]. Such a request "should ordinarily be met by replaying the evidence in Court in the presence of the trial judge, counsel and the accused": at [96]. Further, it may be desirable and in some cases necessary to remind the jury "of countervailing evidence or considerations relied upon by the accused". His Honour concluded (at [96]):

16. [71]

    After agreeing with Hayne J that technically the video recording should have been marked for identification, rather than treated as an exhibit, Gleeson CJ observed that when the trial judge decided (as he was entitled to do) to comply with the jury’s request to hear again the pre-recorded evidence of the complainant, that should have been done by replaying the recording of the evidence in open court, before the judge, jury and counsel: at [3]. The Chief Justice described the course taken at trial as an irregularity, however he agreed with Hayne J that, in the circumstances of the case, there was no miscarriage of justice because (at [4]):

17. [72]

    In Jarrett the jury had requested and had been granted access in the jury room to a video of the complainant’s evidence-in-chief, which consisted of a video recording of her interview by a police officer. A transcript of the complainant’s evidence in chief was also provided to the jury. Counsel for the accused had not objected to that course. The prosecution case comprised in part evidence of witnesses to statements made by the accused when he was admitted to hospital, at a time when he believed that the complainant had gone to the police. Those statements were capable of being understood as admissions by the accused that he had sexually assaulted the complainant.

18. [73]

    The applicant asserted on appeal that the “balance of evidence” was disturbed in circumstances where the other evidence was available only in a paper transcript, and that what occurred was inconsistent with the approach required by NZ. The error was compounded, the applicant submitted, by the failure to give the jury a warning pursuant to s 306X of the Criminal Procedure Act, not to draw any inference adverse to the accused or give the evidence any greater or lesser weight because of the evidence being given in that way, at the time access to the recording was provided.

19. [74]

    Although the applicant withdrew this ground of appeal insofar as it relied upon NZ and limited his argument to the application of s 306X (concerning the warning to be given to the jury), the Court dealt with the question of whether there was a proper basis for granting leave under r 4 of the Criminal Appeal Rules.

20. [75]

    After referring to the reasoning in NZ, Basten JA (RA Hulme J agreeing) noted that the applicant’s trial was relatively short and the evidence fell within two tranches, namely, evidence of the complainant and evidence of the hospital staff of statements made by the accused. The only evidence called for by the defence was from the applicant’s sister. Basten JA found that it was sufficient that there had been an earlier warning given by the trial judge pursuant to s 306X.

21. [76]

    Basten JA did not accept the applicant’s submission that the “balance of evidence” was disturbed by what occurred. His Honour considered that the issue of “balance” was expressly addressed by providing the whole of the transcript of the complainant’s evidence and the transcript of a police officer’s evidence through whom the complainant’s evidence was tendered. Basten JA observed that the jury was reminded to check anything they heard against the transcript in the event that there was any issue in their minds about any passage in the tape. His Honour concluded that counsel for the applicant was correct to accept that this ground did not warrant a grant of leave under r 4, in circumstances where the procedure had been accepted by counsel for the defence at trial and no further direction had been sought.

22. [77]

    Campbell J agreed with Basten JA, but added that the approach adopted by the High Court in Gately was somewhat more proscriptive than the approach adopted by this Court in NZ. Campbell J agreed with the remarks of Hayne J at [96] in Gately and expressed the view that this approach ought now to be the practice adopted in New South Wales.

23. [78]

    Campbell J repeated that view when sitting as a trial judge in R v Michael Anthony Ryan (No 7) [2012] NSWSC 1160 at [32]:

Was there an irregularity at trial?

1. [79]

   Criminal Appeal Act 1912 (NSW), s 6(1) provides:

2. [80]

   In this case, the applicant did not assert that what occurred at trial involved any error of law. That is consistent with the view expressed by Spigelman CJ in NZ (at [3]) (albeit in dissent in the result), that allowing the jury unsupervised access to the complainant’s recorded evidence, in circumstances where there had been no objection by the accused at trial, was not an error of law, referring to Papakosmas v R (1999) 196 CLR 297 at 319, and R v Button at [32] – [35] among other cases. Rather, the applicant asserted that what occurred was an irregularity, which occasioned a miscarriage of justice.

3. [81]

   The procedure followed in this case is to be contrasted with what senior counsel for the applicant submitted should have been followed in response to the jury’s request for access to the complainant’s recorded evidence. Senior counsel accepted that the jury could have asked to be reminded of the complainant’s recorded evidence and that could have been done by replaying the video recordings, with the benefit of the transcript, in the same way that a jury is reminded of any other witness’s evidence. That may be taken to be a reference to playing the complainant’s recorded evidence in court before the jury with judge and counsel present.

4. [82]

   As indicated, the majority in NZ emphasised that this Court "should not lay down any rule of practice or procedure to be followed in every case where the evidence in chief of a witness has been given by the playing of a videotape": at [210]. The procedural flexibility inherent in those observations was accepted and applied by Basten JA and R A Hulme J in Jarrett.

5. [83]

   In Gately, NZ was referred to in the course of argument (at 210) but otherwise not referred to or considered in the majority judgments. While Gately suggests a more proscriptive approach than NZ to allowing the jury access to a complainant’s recorded evidence, I do not read Gately as imposing a complete proscription on that occurring: see the remarks of Hayne J at [96]. Nonetheless, Gately read with NZ may be taken as emphasising the general undesirability of allowing the jury unsupervised access to the complainant’s recorded evidence.

Leave under the Criminal Appeal Rules, r 4

1. [84]

   If there is any merit in the applicant’s argument, it cannot be accepted unless leave is given pursuant to the Criminal Appeal Rules, r 4. That makes it necessary to say something about the principle embodied in r 4.

2. [85]

   In R v Button (2002) 54 NSWLR 455; [2001] NSWCCA 159, Heydon JA referred (at [32] – [35]) to the following passages in earlier cases to which Wood CJ at CL had referred in R v Fuge [2001] NSWCCA 208, explaining the principle embodied in r 4:

3. [86]

   In this case, while objection was not taken by trial counsel for the defence to the procedure followed by the trial judge, and the Crown referred the trial judge to NZ, the trial judge’s attention was not drawn to the remarks of the High Court in Gately. In these circumstances, I consider that ground 1 warrants a grant of leave under r 4.

Was there a miscarriage of justice?

1. [87]

   Accepting, favourably to the applicant, that there was an irregularity in this case in allowing the jury access in the jury room to the complainant’s recorded evidence, the question which arises is whether that irregularity was so fundamental, as the applicant contended, that it occasioned a miscarriage of justice: Criminal Appeal Act, s 6(1).

2. [88]

   That the applicant advanced a defence case by giving and calling evidence, is a relevant matter to be taken into account in considering the applicant’s complaint that the trial was unbalanced in allowing the jury access to the complainant’s recorded evidence. However, contrary to the applicant’s submissions, this is not necessarily decisive on the question of whether a miscarriage of justice occurred: NZ at [218].

3. [89]

   Against this, it is relevant that experienced trial counsel for the defence did not object to the jury being provided with the complainant’s recorded evidence. The explanation given in an affidavit by trial counsel for the defence, which was read without objection in this Court, was that counsel “did not think it would make a difference one way or the other”. That is consistent with an acceptance by trial counsel for the defence that allowing the jury access to the complainant’s recorded evidence would not give rise to an imbalance of evidence.

4. [90]

   Further and importantly, the absence of a request for a redirection following the warning given to the jury not to give disproportionate weight to the complainant’s recorded evidence, is also consistent with trial counsel for the defence accepting that there was no unfairness in the procedure followed.

5. [91]

   It is to be recalled that the complainant’s recorded evidence had been played in court before the jury on the first and second days of the trial (26 and 27 April 2016). The transcript of those recordings were provided to the jury when those recordings were played and then taken back. At the time of the jury’s request for the complainant’s recorded evidence, shortly after retiring to consider their verdicts on 5 May 2016, the jury already had access to the audio-visual recording and transcript of the applicant’s account given in his ERISP, which was consistent with his account given at trial. That trial counsel for the defence did not object to the jury having access to the complainant’s recorded evidence is not surprising. Plainly, the credibility and plausibility of the complainant’s evidence was critical to the jury’s deliberations, taking into account all of the evidence before the jury, which included the recording of the applicant’s account in his ERISP.

6. [92]

   In my view, in circumstances where all of the exhibits and transcripts had been provided to the jury, the issue of balance was expressly addressed by providing the jury with the whole of the complainant’s recorded evidence, including cross-examination at the first trial, the applicant’s recorded evidence in his ERISP and the warning given to the jury not to give disproportionate weight to the complainant’s recorded evidence.

7. [93]

   In the circumstances, where the procedure had been accepted by trial counsel for the defence and no redirection had been sought, I do not consider that the irregularity which occurred occasioned a miscarriage of justice.

Sentence appeal

1. [94]

   After referring to the facts of the offending, the maximum penalties for each of the offences, and the standard non-parole period for the offences the subject of counts 2, 3 and 4, the sentencing judge found that although the offences “may have been opportunistic”, they were consistent with “grooming the complainant, or at least acting on a sexual desire” and represented “a significant breach of trust”.

2. [95]

   His Honour took into account the applicant’s subjective circumstances, relevantly: he was 63 years of age at the time of sentencing and had no prior criminal conviction; he had been a hardworking, industrious person and an outstanding member of the community; he had good prospects of rehabilitation (but only because the applicant had shown no sexual interest in any other child and would have no opportunity to further sexually assault the complainant upon his release from custody); he had medical conditions exhibited by physical and psychological symptoms, most importantly a cardiac problem and his time in custody will be harder than it would otherwise have been due to this circumstance; and he will also suffer by knowing that he has denied his wife the assistance that he has provided her over the years for her physical and psychological problems.

3. [96]

   His Honour also noted that the applicant’s good character allowed him to commit the offences. He found that the applicant had not accepted responsibility for his actions, despite an overwhelming Crown case, and took into account the impact of the offending on the complainant, which demonstrated the harm that these type of offences cause.

4. [97]

   His Honour made a finding of special circumstances on the grounds of the applicant’s age, his health and this being his first time in custody.

5. [98]

   His Honour observed that the “statistics” from JIRS provided by the applicant’s counsel were of very limited application, and found some assistance in the comparative cases provided by the parties when determining the appropriate sentences to impose.

6. [99]

   His Honour concluded that a full-time custodial sentence should be imposed for each count because of the need to reflect general deterrence. In determining the aggregate sentence which he imposed, his Honour remarked:

Submissions

1. [100]

   No complaint is made by the applicant in respect of the indicative sentences stated by the trial judge in respect of counts 1, 2 and 3, albeit the applicant submitted that these indicative sentences were towards the top end of the appropriate range of sentences for offences of this type. The applicant’s complaint is directed to the sentence indicated for count 4, and the aggregate sentence imposed. Each was said to be manifestly excessive.

2. [101]

   As to count 4, the applicant pointed to the short duration of this offence and the applicant’s subjective circumstances. As to the aggregate sentence, the applicant pointed to the trial judge’s findings as to the applicant’s subjective circumstances and his stated intention that there be little accumulation with counts 2, 3 and 4.

3. [102]

   The Crown emphasised that the applicant does not challenge any of the factual findings made by the sentencing judge, and the applicant’s concession that the indicative sentences for counts 1, 2 and 3 are within the appropriate range of sentences for offences of this type.

4. [103]

   The Crown pointed to the cases which it provided to the sentencing judge relating to s 61M(2) offences, which the sentencing judge found to be of assistance, and submitted that the indicative sentence for count 4 of 4 years with a non-parole period of 2 years fits comfortably within the sentencing range demonstrated by the table of such cases.

5. [104]

   The Crown further submitted that given the sum of the four indicative sentences is 14.5 years imprisonment, with a total non-parole period of 11 years, the aggregate total sentence of 8 years imprisonment, with an aggregate non-parole period of 5 years, involved a large measure of concurrency.

Decision

1. [105]

   No specific error is alleged in relation to the sentencing process. To succeed on the ground that the sentence is manifestly excessive, the applicant must establish that the sentence was “unreasonable” or “plainly unjust”: Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]. Senior counsel for the applicant accepted in oral argument that this ground was very much impressionistic and depends upon whether the aggregate sentence leaps out as being too harsh.

2. [106]

   The offending the subject of counts 2, 3 and 4, all occurred during the one incident. It will be recalled that count 2 involved the offender deliberately rubbing the complainant’s genitals with his hand outside her underpants. Count 3 involved the offender placing his hand up the complainant’s jumper and touching her breasts. Count 4 involved the applicant putting his hand inside the complainant’s pants and touching her external genitals. The sentencing judge found that the offending, the subject of count 2, was a precursor to the offending, the subject of count 4. Plainly, count 4 was more serious.

3. [107]

   The touching of the genitalia of a girl aged 12 years represented a significant breach of trust, as the sentencing judge found. The complainant was entitled to feel safe in her family home, yet the applicant took advantage of her vulnerability as a young girl. That the offences were committed in the complainant’s home and involved abuse of a position of trust in relation to the complainant, were both aggravating factors under the Crimes (Sentencing Procedure) Act, s 21A(2)(eb) and (k).

4. [108]

   I do not regard the indicative sentence for count 4 as necessarily or obviously excessive on the facts of this case. Nor do I regard the aggregate sentence in respect of counts 1, 2, 3 and 4 as unreasonably high taking into account the sentencing judge’s remarks concerning accumulation. Accepting that the indicative sentences were within the range of appropriate sentences available to his Honour, I am not persuaded that the aggregate sentence is plainly unreasonable or unjust.

Orders

1. [109]

   I propose the following orders:

   1. (1)

      Extend time for filing the notice of application for leave to appeal.

   2. (2)

      With respect to the appeal against conviction, grant leave to rely upon ground 1 pursuant to Criminal Appeal Rules, r 4.

   3. (3)

      Appeal against conviction dismissed.

   4. (4)

      Grant leave to appeal against sentence.

   5. (5)

      Appeal against sentence dismissed.

2. [110]

   ROTHMAN J: I agree with Gleeson JA.

3. [111]

   HAMILL J: I agree with Gleeson JA.